1. The present First Appeal has been filed by the appellant being aggrieved and dissatisfied with the impugned judgment and order rendered in Regular Civil Suit No.2521/1982 dated 31.03.1988 on the grounds stated in the memo of appeal. It is contended inter alia that the judgment and decree of the Court below are contrary to law and evidence on record. It is contended that the Court below has failed to appreciate and interpret Clause 11 of the agreement for allotment of the flats. It is contended that the Court below has erroneously interpreted and applied the facts and the provisions of the Gujarat Ownership Flats Act, 1973 and thereby committed an error. It is contended that the Court below has failed to appreciate that as per Clause 11 of the agreement to the acknowledgment of the allottees and other members, there is clear and specific condition reserving rights of the terrace in favour of the appellant-association. It is contended that the Court below has erred in appreciating the provisions of Sections 18 to 41 of the Gujarat Ownership Flats Act, 1973 and also booklet at Exh.42. It is contended that the Court below has failed to appreciate that the public policy underlying the Act is required to be considered and the statutory provisions cannot be overlooked or ignored. In other words, it is contended that there is specific condition in the agreement that they have booked the flats of three floors and in future, if they want to construct, they are entitled to do so subject to the Rules & Regulations of the Government and Municipal Corporation. In other words, relying upon Clause 11 of the agreement, it is contended that the allottee of the respective flat/unit would not have any right to make use of the terrace and the plaintiff is entitled to display boards of advertisement of Neons Sign Board and take income thereof.

2. In the reply to the notice of motion, which has also been treated as reply-cum-written statement at Exh,28, it is contended that in the notice dated 12.07.1981 given by the plaintiff, the appellant-plaintiff has admitted the possession of the respondents and also use and occupation of the terrace by the respective defendants-respondents. There is a reference to some quarrel, which led to filing of NC complaint. It is contended that the appellant-plaintiff is the association, which has been registered as NTC and having purchased the land and developed 'A' & 'B' Block, the possession thereafter has been given to the respondent-original defendants along with the terrace. It is contended that as the plaintiff had refused to sign and delivered the possession, the signatures were obtained containing such clause, which are interpreted erroneously.

3. Heard learned counsel, Mr.Yatin Soni for the appellant and learned counsel, Mr.S.M. Shah for the respondent nos.1 and 2.

4. Learned counsel, Mr.Soni has submitted that the Court is required to consider in this appeal whether Civil Court has right to say that Clause 11 of the agreement between the appellant association-original plaintiff and its members is not valid and/or illegal and against the public policy. Learned counsel, Mr.Soni submitted that in Suit filed by the plaintiff, such prayer could not be considered as defendant has not filed the said Suit. Learned counsel, Mr.Soni submitted that under the provisions of the Gujarat Ownership Flats Act, 1973, the allottees of the flats/units cannot be said to be owners. He submitted that in any case, the sale deed is not executed even with respect to each individual flat or unit. Learned counsel, Mr.Soni submitted that therefore, the land and the entire property vest in the appellant-plaintiff, who had purchased the land and, thereafter, developed it and allottees like the respondents are enjoying the possession or right under such agreement to sale between the parties. He submitted that on the basis of such agreement to sale the flat/unit in the building, can the respective unit/flat holders have title or own